Bringing back popular sovereignty

By Chang Bao-yuan 張葆源

The indictment of first lady Wu Shu-jen (吳淑珍) is contingent on her position, status and relationship to a civil servant. This has given rise to much controversy over whether prosecutors can investigate the president and whether courts should handle the case.

Many members of the legal community have leaned on Article 52 of the Constitution in their attempt to explain the indictment's constitutionality. If, however, the case touches on political activity that proves hard to explain, it will involve the constitutional separation of powers.

The investigation does indeed include two secret statements, and it is uncertain that prosecutors will be able to deny the existence of other secrets based on the false evidence given about a "Mr. B."

Also, if these actions are highly political in nature, it would be worth having more debate on whether or not it would be appropriate for the courts to issue a verdict.

Academic constitutional discourse and judicial precedent recognize several exceptions that lie beyond the reach of the judiciary, such as "acts of state," a concept from Germany known as Regierungsakt.

According to theory, some acts of state exercising the nation's sovereign power are highly political in nature, and such cases are not suitable for handling by judicial institutions. The US calls such acts of state a "political question." The theory of such "political questions" is based on the aggregation of US federal court judgments which define a number of acts of state that do not fall under the jurisdiction of the judiciary.

Although the scope covered by "acts of state" is not clearly defined, the US, Japan and other states include both domestic issues and foreign relations.

Examples are legislative self-restraint; the initiation of emergency powers; cession of territory and mergers; diplomatic activities; recognition of other states, governments and belligerent bodies; and the definition of national boundaries and territorial waters.

Japanese academics have divergent opinions on what constitutes an act of state. In the past, the mainstream followed the view that there was a definite scope, while the more recent view has tended towards a definition based on compromise.

Proponents of the former view say that some acts of state are highly political in nature and that it is therefore inappropriate to submit them to the judicial system. Rather than having courts issue highly controversial verdicts, the public should be allowed to criticize the subject for which the act of state was made.

This approach is further divided into self-restraint and internal restraint.

The self-restraint approach is based on the concept of "judicial passivity" which Miyazawa Toshiyoshi, Hokama Hiroshi and other Japanese legal experts advocated, saying that courts should exercise self-restraint.

Based on their view that courts should not shoulder political responsibilities, they argued that courts should consider the principle of proportionality and be very cautious in handling highly political acts of state. In other words, courts should consider the possible consequences resulting from their judgments.

If their intervention could lead to political turmoil, they should take the less harmful approach and avoid getting involved in political disputes.

The internal restraint approach, for its part, takes into consideration issues involving the relationship between the judiciary's structure, nature and power on the one hand and state power on the other hand. The proponents of this approach advocate judicial powers that are subjected to constitutional limitations.